APPENDIX 4: DRAFT LEGISLATIVE REFROM (LOCAL
AUTHORITY CONSENT REQUIREMENTS) (ENGLAND AND WALES) ORDER 2007
Letter from the Committee's Delegated Legislation
Adviser to the Department for Communities and Local Government
1. The Delegated Powers and Regulatory Reform
Committee will consider this Legislative Reform Order (LRO) at
its meeting on 17 October 2007. There are several questions about
the LRO, on which it would be helpful to receive your advice before
that meeting. I would ask you, therefore, to respond to the following
points by close on Monday 15 October:
2. The third recital on the first page of the
LRO states that, in accordance with section 11 of the Legislative
and Regulatory Reform Act 2006, the National Assembly for Wales
has agreed to the making of the Order. This is at variance with
statements in the Explanatory Document (ED), e.g., at paragraph
3.7: "A Legislative Reform Order which removes functions
of the Welsh Ministers can only be made with the Welsh Ministers
agreement under section 11 of the Act." Please explain
why the LRO as laid refers to the National Assembly for Wales,
and why it is thought that the LRO complies with section 11 of
the Act as amended.
3. As regards the main proposal in relation
to the Cancer Act 1939, at paragraph 4.4 the ED states: "Local
authorities should comply with the Code for Crown Prosecutors..."
Please state whether local authorities' compliance with the
said Code is mandatory or discretionary; and, if mandatory, as
a result of what requirements.
4. As regards the supplementary proposal in relation
to the Cancer Act 1939, at paragraph 4.9 the ED states: "The
proposal (as set out in the supplementary consultation on 29 June
2006) to extend Section 4 (7) of the 1939 Act to include the metropolitan
district councils in metropolitan areas will remove an anomaly
rather than a burden." Please explain how, in your view,
an LRO under the 2006 Act may be used to remove an anomaly, rather
than a burden.
5. As regards the proposal in relation to the
Local Government (Overseas Assistance) Act 1993 (the 1993 Act),
the list of parties consulted shown at Annex A2 to the ED does
not appear to include bodies representative of tax-payers, who
might well be affected by local authorities' decisions on offering
assistance to bodies overseas. Please advise on whether such
representative bodies have been consulted; if so, what views have
been expressed by them; if not, why not.
6. Also as regards the 1993 Act proposal, sub-section
1(7), which it is not proposed should be removed by this LRO,
provides that the Secretary of State "shall provide local
authorities with such guidance about the exercise of their powers
under this section as he thinks appropriate". If the proposed
repeal of existing sub-sections 1(3), 1(4) and 1(5) is effected,
please advise whether the Secretary of State intends to provide
guidance under sub-section 1(7), e.g., about the level of expenditure
on assistance which local authorities might incur under the 1993
Act.
7. As regards the proposal in relation to the
Education Act 1996, at paragraph 7.9 the ED states: "We are
not aware of any applications to the Secretary of State or to
the Welsh Ministers [to obtain consent to make arrangements for
the consideration and disposal of any complaint that the local
authority, or the teacher in charge of a Pupil Referral Unit,
have acted unreasonably etc.]." Please say whether there
have been systematic efforts to determine if such applications
have been made, and comment on whether the apparent absence of
any such applications tends to indicate either that arrangements
have been made without the requisite consent or that local authorities
are not complying with the duty to make arrangements.
11 October 2007
Letter from the Department for Communities and
Local Government to the Committee's Delegated Legislation Adviser
1. Thank you for your e-mailed letter of 11 October
2007, advising me that the Delegated Powers and Regulatory Reform
Committee will consider the Legislative Reform Order at its meeting
on 17 October. In order to inform its consideration, the Committee
has asked a series of questions on the various consent regimes.
2. In order for officials to respond, I had to
seek advice from the relevant Government Departments who have
policy responsibility for the consent regimes, and colleagues
have provided replies which are as full as possible given the
short deadline for responses.
3. Taking the Committee's questions each in turn;
4. The third recital on the first page of the
Legislative Reform Order states that in accordance with Section
11 of the Legislative and Regulatory Reform Act 2006, the National
Assembly for Wales has agreed to the making of the Order. The
Committee states that this is at variance with statements in the
Explanatory Document e.g. paragraph 3.7 'an LRO which removes
functions of the Welsh Ministers can only be made with the Welsh
Ministers agreement under Section 11 of that Act.
'Please explain why the LRO as laid refers to
the National Assembly for Wales, and why it is thought that the
LRO complies with Section 11 of the Act as amended'.
5. Formal consent to the draft Order was given
by the National Assembly for Wales (as section 11 of the Act,
at that date unamended, then required) on 27 March 2007. Welsh
legal colleagues were consulted, at the time of the coming into
force of the Government of Wales Act 2006, as to whether a further
resolution of the Welsh Ministers should be sought in relation
to the draft Order. CLG was advised that no such formal resolution
would be necessary (though it is believed a submission went to
the relevant Minister for information). The retention of the previous
name for the government of Wales in the recital reflects the true
position and the recital was drafted with the knowledge of Parliamentary
Counsel (who commented that it is hard to know what else could
be said).
6. As regards to the main proposal in relation
to the Cancer Act 1939, at paragraph 4.4 the Explanatory Document
states ' local authorities should comply with the code for Crown
prosecutions'.
'Please state whether local authorities' compliance
with the said code is mandatory or discretionary and if mandatory
as a result of what requirements?'
7. There is clear case law (R v Chief
Constable of Kent ex parte L (1991) 93 Cr. App R 416) to the
effect that 'the decision of the Crown Prosecution Service to
continue or discontinue criminal proceedings was subject to a
Judicial Review where it could be shown that the decision was
made regardless of, or clearly contrary to, a settled policy of
the Director of Public Prosecutions evolved in the public interest.
8. Therefore, there is no discretion to depart
from the code for Crown prosecutors (which allows for a considerable
exercise of discretion in any event).
9. As regards to the supplementary proposal in
relation to the Cancer Act 1939, at paragraph 4.9 the Explanatory
Document states 'the proposal (as set out in the supplementary
consultation in June 2006) to extend Section 4(7) of the 1939
Act to include the metropolitan district councils in metropolitan
areas will remove an anomaly rather than a burden.
'Please explain how in your view, an LRO under
the 2006 Act may be used to remove an anomaly rather than a burden'
10. Since the abolition of the metropolitan county
councils by the Local Government Act 1985, the duty to institute
proceedings under Section 4(7) of the 1939 Act has not been exercisable
by any local authority within metropolitan county areas. There
is no logical reason to exclude part of the country from this
Act and thus provide residents in those areas with a lower level
of consumer protection. This amendment would simply correct an
anomaly that arose unintentionally when metropolitan councils
were abolished in 1985. It would ensure that the Act applied to
England as a whole rather than parts of it only. The anomaly in
itself is arguably burdensome in that it leaves the law in a state
of inconsistency, prevents citizens in metropolitan district council
areas from enjoying full rights as consumers, and prevents such
councils from being able to offer full protection to their citizens.
11. By section 1(2) of the Legislative and Regulatory
Reform Act 2006, the purpose for which legislative reform orders
may be made is removing or reducing a burden or overall burdens
resulting directly or indirectly for any person from any legislation;
and under section 1(3), a "burden" includes "(b)
an administrative inconvenience" and "(c) an obstacle
to efficiency. . .". Subsection 1(5) goes on to provide that
an administrative inconvenience may result from the form of any
legislation. The Department considers that the anomalous situation
arising as a result of the form of this legislation following
the enactment of the Local Government Act 1985 creates an administrative
inconvenience which is burdensome in the respects described above.
The Department accepts that the Explanatory Document should perhaps
have expressed this point more fully, and avoided the use of language
deriving from the repealed Regulatory Reform Act 2001.
12. As regards to the proposal in relation to
the Local Government (Overseas Assistance) Act 1993, the list
of parties consulted shown at Annex A2 of the Explanatory Document
does not appear to include bodies representative of taxpayers,
who might well be affected by local authorities' decisions on
offering assistance to bodies overseas.
'Please advise whether such representative bodies
have been consulted if so, what views have been expressed by them
if not, why not'
13. The CLG did not consult representative bodies.
Any decision taken by local authorities in relation to offering
assistance would be part of the council's budget approved by the
council which is democratically accountable to local taxpayers.
Moreover, councils are required when preparing a budget to consult
businesses. Accordingly, the department did not consider it appropriate
to attempt to seek representative views of council taxpayers across
England & Wales.
14. In relation to guidance, the Secretary of
State's approach is set out in paragraph 64-74 of the Local Government
White Paper's Implementation Plan and makes it clear that guidance
should be sector led. The Department for Communities and Local
Government is acting in consultation with the Local Government
Association but currently has no proposals to issue formal guidance
if the consent requirement in the 1993 Act is removed.
15. As regards the proposal in relation to the
Education Act 1996, paragraph 7.9 of the Explanatory Document
states 'we are not aware of any applications to the Secretary
of State or the Welsh Ministers (to obtain the consent to make
arrangements for the consideration and disposal of any complaint
that the local authority or teacher in charge of a Pupil Referral
Unit has acted unreasonably).
'Please state whether there has been systematic
efforts to determine if such applications have been made, and
comment whether the apparent absence of any such application tends
to indicate either that arrangements have been made without the
requisite consent or that the local authority is not complying
with the duty'
16. The view was initially taken that
arrangements for consideration of a complaint about the curriculum
in a Pupil Referral Unit did not have to be made until such a
complaint had actually been made. Consequently, the Secretary
of State would only have to approve such arrangements if there
was a complaint.
17. However when, for the first time, a local
authority voluntarily sent to the Department for Children, Schools
and Families ("DCSF") a copy of a curriculum complaints
procedure for a new Pupil Referral Unit for the Secretary of State's
approval, legal advice stated that paragraph 6(3) of Schedule
1 could be interpreted to mean that all Pupil Referral Units should
have a curriculum complaints procedure when they are established
and that Secretary of State approval should be sought for the
arrangements.
18. Local authorities may not have been advised
of this requirement; or this may not have been the original intention
of paragraph 6(3) of Schedule 1 when enacted. DCSF suggest that
it is possible that authorities may been making arrangements to
consider curriculum complaints without the Secretary of State's
approval (either at the outset when establishing a Pupil Referral
Unit or when a complaint is made) but this does not imply that
there is no burden, simply that such action is outside authorities'
powers. To the extent that the fresh legal advice suggests that
all authorities should have complaints procedures in place before
any complaint is made, DCSF might need to advise an authority
establishing a new Pupil Referral Unit that Secretary of State
approval is required for the complaints procedure, or, alternatively,
write to every authority requiring approval for such arrangements.
15 October 2007
Letter from the Committee's Delegated Legislation
Adviser to the Department for Communities and Local Government
1. The Delegated Powers and Regulatory Reform
Committee considered this Legislative Reform Order (LRO) at its
meeting on 17 October 2007. The Committee agreed to recommend
that the super-affirmative resolution procedure should apply to
the draft Order and made this recommendation to the House on 17
October.
2. The Committee had before it my letter to you
of 11 October, and your reply of 15 October. It asked that clarification
be sought from your Department of the following points:
- in my letter of 11 October, I
asked why the LRO as laid referred to the National Assembly for
Wales, rather than to Welsh Ministers, and why it was thought
that the LRO complied with section 11 of the Legislative and Regulatory
Reform Act 2006 (the 2006 Act) as amended. Your reply of 15 October
included the statement that "the retention of the previous
name for the government of Wales in the recital reflects the true
position and the recital was drafted with the knowledge of Parliamentary
Counsel (who commented that it is hard to know what else could
be said)." The Committee considered that your reply had still
not demonstrated that the LRO is compliant with the 2006 Act.
Are you able to add anything to your earlier advice, such as
whether there are transitional provisions in the Government of
Wales Act 2006 that may be relevant?
- in my letter of 11 October, as regards the proposal
in relation to the Cancer Act 1939 ("the 1939 Act"),
I asked you to state whether local authorities' compliance with
the Code for Crown Prosecutors was mandatory or discretionary.
In your reply of 15 October, you stated that "there is no
discretion to depart from the code for Crown prosecutors",
but you exemplified this with a case involving the Crown Prosecution
Service, not a local authority. The Committee is aware that some
local authorities have resolved to comply with this Code, which
might seem to suggest that such compliance is discretionary. Can
you demonstrate clearly that local authorities' compliance with
the Code is mandatory; alternatively, if it is discretionary,
can you say what safeguards would apply if the proposal were implemented?
- in my letter of 11 October, as regards the supplementary
proposal in relation to the 1939 Act, I asked you to explain how
an LRO under the 2006 Act could be used to remove an anomaly,
rather than a burden. In your reply of 15 October, you
stated the Department's view that "the anomalous situation
arising as a result of the form of this legislation [the 1939
Act] following the enactment of the Local Government Act 1985
creates an administrative inconvenience which is burdensome in
the respects described [earlier in your letter]." Can
you explain more clearly how enabling metropolitan district councils
to institute proceedings under the 1939 Act can be seen as the
removal of a burden in terms of the 2006 Act; and, in particular,
which categories of person are thought to be affected by the burden,
and why (as respects each category) there is thought to be "administrative
inconvenience". Since the anomaly has arisen as a result
of the enactment of the Local Government Act 1985, have you considered
using powers under that Act to rectify the anomaly; and, if so,
why have you decided not to use such powers (e.g., under section
101)?
- in my letter of 11 October, as regards the proposal
in relation to the Local Government (Overseas Assistance) Act
1993 ("the 1993 Act"), I asked whether the Secretary
of State intended to provide guidance under section 1(7) of the
1993 Act, e.g., about the level of expenditure on assistance which
local authorities might incur. In your reply of 15 October, you
said that your Department currently had no proposals to issue
formal guidance if the consent requirement in the 1993 Act were
removed. Given that the general authorisation, which would
cease under this proposal, might be seen to provide benchmarks
on expenditure to inform local authorities' decisions, can you
say more about why you do not consider that guidance under section
1(7) of the 1993 Act would be useful if the proposal went ahead?
- in my letter of 11 October, as regards the proposal
in relation to the Education Act 1996, I referred to paragraph
7.9 of the Explanatory Document to the LRO which stated that the
Department did not know of any applications to the Secretary of
State or to the Welsh Ministers to obtain consent to make arrangements
for the consideration and disposal of any complaint in relation
to Pupil Referral Units (PRUs). Your reply of 15 October confirmed
this position; you explained that recent legal advice had suggested
that all authorities should have complaints procedures in place
before any complaint was made; and you said that this implied
that the relevant Department (DCSF) might need to advise an authority
establishing a new PRU that the Secretary of State's approval
was required for the complaints procedure, or, alternatively,
write to every authority requiring approval for such arrangements.
Given that the need to obtain approval from the Secretary of
State should provide certain protection (e.g., a consistent approach
among authorities, and re-assurance to a local authority as to
the adequacy of its arrangements), can you say whether, if the
proposal were implemented, the Department would intend to issue
guidance in this matter to local authorities?
3. It would be helpful if you could reply to
this letter by 8 November 2007.
18 October 2007
Letter from the Department for Communities and
Local Government to the Committee's Delegated Legislation Adviser
1. Thank you for your e-mailed letter of 18 October
2007, advising me that the Delegated Powers and Regulatory Reform
Committee sought further clarification on the responses we had
provided to your original letter, dated 11 October 2007.
2. In order to provide as full a response as
possible we have again sought advice from the relevant Government
Departments who have policy responsibility for the consent regimes.
3. Taking the Committee's questions each in turn;
"in my letter of 11 October, I asked why
the LRO as laid referred to the National Assembly for Wales, rather
than to Welsh Ministers, and why it was thought that the LRO complied
with section 11 of the Legislative and Regulatory Reform Act 2006
(the 2006 Act) as amended. Your reply of 15 October included the
statement that "the retention of the previous name for the
government of Wales in the recital reflects the true position
and the recital was drafted with the hard to know what else could
be said)." The Committee considered that your reply had still
not demonstrated that the LRO is compliant with the 2006 Act.
Are you able to add anything to your earlier advice, such as whether
there are transitional provisions in the Government of Wales Act
2006 that may be relevant?"
4. The Committee may already have had sight of
my letter to the House of Commons' Regulatory Reform Committee,
which set out in greater detail the analysis of why it is thought
that the LRO complies with the 2006 Act. However, for ease of
reference we repeat that analysis as follow.
5. The National Assembly for Wales, constituted
under the Government of Wales Act 1998, gave agreement in March
2007 to the making of the Order, in accordance with section 11
of the LRRA 2006 as it then stood. The amendments to section 11
by the Government of Wales Act 2006 (Consequential Modifications
and Transitional Provisions) Order 2007 came into force on 25
May 2007, from which date section 11(2) was amended to require
the agreement of the Welsh Ministers.
6. By virtue of paragraph 38(1)(c) of schedule
11 to the Government of Wales Act 2006, a "transferred function"
(in paragraphs 39 and 40) means a function which is conferred
or imposed on the Welsh Ministers by a provision of any Act in
consequence of the amendment of that Act by or under the Government
of Wales Act 2006. For present purposes, the agreement of Welsh
Ministers under section 11 of the LRRA is a "transferred
function".
7. By virtue of paragraph 39 of schedule 11 to
the Government of Wales Act 2006, anything that was done by or
in relation to the National Assembly constituted by Government
of Wales Act 1998 for the purpose of or in connection with a transferred
function has effect as if done by the transferee of the transferred
function, the transferee here being the Welsh Ministers. The Department
therefore considers that the requirement to gain agreement of
Welsh Ministers under section 11(2) has been satisfied.
8. The relevant Welsh Ministers were consulted
on and agreed the draft Order before it was presented to the National
Assembly for Wales in March. Welsh Ministers appointed following
the National Assembly elections in May have been briefed on the
Order.
"in my letter of 11 October, as regards the
proposal in relation to the Cancer Act 1939 ("the 1939 Act"),
I asked you to state whether local authorities' compliance with
the Code for Crown Prosecutors was mandatory or discretionary.
In your reply of 15 October, you stated that "there is no
discretion to depart from the code for Crown prosecutors",
but you exemplified this with a case involving the Crown Prosecution
Service, not a local authority. The Committee is aware that some
local authorities have resolved to comply with this Code, which
might seem to suggest that such compliance is discretionary. Can
you demonstrate clearly that local authorities' compliance with
the Code is mandatory; alternatively, if it is discretionary,
can you say what safeguards would apply if the proposal were implemented?"
9. Advice from the Crown Prosecution Service
("CPS") confirmed that the Code is binding on CPS prosecutors
and that, in addition, all Government prosecutors are also expected
to comply with the principles of the Code. However, the CPS advised
that it is a matter for local authorities whether they require
their prosecutors to comply with the principles of the Code. The
Department of Health has no information as to which specific local
authorities require their prosecutors to comply with the Code.
10. However advice from the Local Authorities'
Co-Ordinators of Regulatory Services is that local authorities'
own enforcement policies are based on the Code, and that generally
speaking authorities will already be familiar with their obligations
in this respect. Thus although compliance is discretionary, it
was considered superfluous (and inconsistent with the wider policy
objective of conferring greater freedom in decision-making on
local authorities) to spell out any additional criteria for prosecuting,
on the face of the legislation, or to impose any additional requirements
on authorities by way of further guidance.
"in my letter of 11 October, as regards the
supplementary proposal in relation to the 1939 Act, I asked you
to explain how an LRO under the 2006 Act could be used to remove
an anomaly, rather than a burden. In your reply of 15 October,
you stated the Department's view that "the anomalous situation
arising as a result of the form of this legislation [the 1939
Act] following the enactment of the Local Government Act 1985
creates an administrative inconvenience which is burdensome in
the respects described [earlier in your letter]." Can you
explain more clearly how enabling metropolitan district councils
to institute proceedings under the 1939 Act can be seen as the
removal of a burden in terms of the 2006 Act; and, in particular,
which categories of person are thought to be affected by the burden,
and why (as respects each category) there is thought to be "administrative
inconvenience". Since the anomaly has arisen as a result
of the enactment of the Local Government Act 1985, have you considered
using powers under that Act to rectify the anomaly; and, if so,
why have you decided not to use such powers (e.g., under section
101)?"
11. In so far as this amendment may be analysed
as removal of a burden which is an administrative inconvenience,
the Department takes the view that the amendment relating to metropolitan
district councils removes a burden, which is an administrative
inconvenience resulting directly (for certain councils) and indirectly
(for the public in the areas of those councils) from section 4
of the 1939 Act. It therefore falls within sections 1(1), (2)
and (3)(b) of the LRRA.
12. Since the abolition of the metropolitan county
councils by the Local Government Act 1985, the duty to institute
proceedings under section 4(7) of the 1939 has not been exercisable
by any local authority within metropolitan county areas. The exclusion
of metropolitan district councils was an unintentional consequence
of the abolition of metropolitan councils under the Local Government
Act 1985. The effect of this is that currently, under the 1939
Act, metropolitan district councils cannot bring proceedings under
section 4 of that Act against persons who take part in the publication
of any advertisement offering treatment, prescribing a remedy,
or offering advice in connection with treatment, for cancer. Part
of the country is therefore excluded from the protection provided
by section 4
13. This anomaly is a burden for members of the
public in areas of such councils in that the law in relation to
them is left in a state of inconsistency, which may confuse them
and ultimately leave them vulnerable to the very acts which section
4 of the Cancer Act 1939 was intended to prevent. There is no
logical reason to exclude part of the country from this Act nor
to provide residents in those areas with a lower level of consumer
protection.
14. The administrative inconvenience is also
a burden for metropolitan district councils themselves. Although
currently, metropolitan district councils have general powers
to prosecute under section 222 of the Local Government Act 1972,
the test under that section is that they can do so where they
consider it expedient for the promotion or protection of the interests
or inhabitants for their area. They cannot, though, prosecute
under section 4 of the 1939 Act. The extent of the powers under
section 222 is comparatively less clear and can lead to protracted
argument as to whether or not a particular case falls within those
powers. It is by no means certain that an authority could bring
a prosecution under that section for the sort of offence envisaged
by section 4 of the Cancer Act 1939. It would be more straightforward,
convenient and consistent if metropolitan district councils were
able to prosecute under the same legislative provisions as other
authorities for the same type of offence.
15. As an alternative to the analysis above,
the Department avers that in its view, the proposed amendment
to include metropolitan district councils in subsection (7) is
supplementary or incidental to the repeal of section 4(6) and
the amendment to section 4(7), which provides councils with the
discretionary power to institute proceedings (rather than imposes
a duty on them to institute proceedings). Listing the authorities
to which the new procedure is to apply, in terms which are consistent
with the current state of local government structure, is incidental
or supplementary to the establishment of the procedure itself.
While considering amendments to the 1939 Act to
be included in the proposed RRO (now the LRO) it was discovered
that, since the abolition of the metropolitan county councils
by the Local Government Act 1985, the duty to institute proceedings
under section 4(7) of the 939 Act was not transferred to any authority
within metropolitan county areas in England. Use of powers under
the Local Government Act 1985 was not considered in relation to
this particular issue. The Department considers it is more appropriate
to make the amendments to the metropolitan district council in
the context of the amendments to section 4 of the 1939 Act as
a whole in the one instrument.
"in my letter of 11 October, as regards the
proposal in relation to the Local Government (Overseas Assistance)
Act 1993 ("the 1993 Act"), I asked whether the Secretary
of State intended to provide guidance under section 1(7) of the
1993 Act, e.g., about the level of expenditure on assistance which
local authorities might incur. In your reply of 15 October, you
said that your Department currently had no proposals to issue
formal guidance if the consent requirement in the 1993 Act were
removed. Given that the general authorisation, which would cease
under this proposal, might be seen to provide benchmarks on expenditure
to inform local authorities' decisions, can you say more about
why you do not consider that guidance under section 1(7) of the
1993 Act would be useful if the proposal went ahead?"
16. Government policy on guidance and advice
to local government has evolved since the current general consent
was issued in 1996. As previously explained, the policy approach
is set out in the Local Government White Paper Implementation
Plan and reflects a commitment to keep guidance to the minimum.
This is covered in paragraph 6.10 of the Explanatory Memorandum:
This legislation is out of line with current approaches
and local authorities should be free to incur expenditure to provide
advice and assistance, in a manner they deem appropriate. This
approach is consistent with provisions in the power of well-being
which enables authorities to incur expenditure, without limit,
where it promotes social, economic or environmental well-being
of the local community. Local authorities' expenditure is audited
and they should be accountable to their communities for decisions,
including on providing overseas advice and assistance, where this
results in local authorities incurring expenditure. We believe
that this maintains necessary protections.
17. This is the backdrop to the current position
not to issue further guidance following the removal of the consent
requirement in the 1993 Act but, as previously stated, the matter
will be kept under review in conjunction with the Local Government
Association, and the Audit Commission will also continue to monitor
local government expenditure in this as in other respects.
"in my letter of 11 October, as regards the
proposal in relation to the Education Act 1996, I referred to
paragraph 7.9 of the Explanatory Document to the LRO which stated
that the Department did not know of any applications to the Secretary
of State or to the Welsh Ministers to obtain consent to make arrangements
for the consideration and disposal of any complaint in relation
to Pupil Referral Units (PRUs). Your reply of 15 October confirmed
this position; you explained that recent legal advice had suggested
that all authorities should have complaints procedures in place
before any complaint was made; and you said that this implied
that the relevant Department (DCSF) might need to advise an authority
establishing a new PRU that the Secretary of State's approval
was required for the complaints procedure, or, alternatively,
write to every authority requiring approval for such arrangements.
Given that the need to obtain approval from the Secretary of State
should provide certain protection (e.g., a consistent approach
among authorities, and re-assurance to a local authority as to
the adequacy of its arrangements), can you say whether, if the
proposal were implemented, the Department would intend to issue
guidance in this matter to local authorities?"
18. The Department does intend to remind local
authorities about the need to establish and publicise arrangements
for the handling of complaints relating to curriculum offered
in their PRUs. The Education (Pupil Referral Units) (Management
Committees etc.) (England) Regulations 2007 - SI 2007 No.2978
have recently been made. The relevant regulation is regulation
23 "curriculum". Associated information will be issued
to authorities explaining the requirements for establishment and
operation of management committees for PRUs, both for authorities
and PRU practitioners.
19. In brief, the local authority, the management
committee and the head of the PRU will be required to jointly
make and review the policy in relation to the curriculum for the
PRU. It is thought sensible, therefore, for the local authority
and the management committee (which will include the head of the
PRU) also to make and publicise the arrangements for considering
complaints relating to the curriculum. The explanatory information
will make this point clear.
20. I hope that the additional responses, as
laid out above will assist the Committee in its consideration
of the draft Order. The Department is grateful for the comments
received from both the Lords' and Commons' Regulatory Reform Committees,
and subject to Parliamentary Counsel views, we will revise the
footnotes to the Order and the Explanatory Note if there is an
opportunity to do so in the course of the super affirmative procedure.
8 November 2007
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